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With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

Recently, the United States District Court for the District of Massachusetts granted summary judgment in favor of a manufacturer of an injection molding machine on plaintiff’s claim that it was defectively manufactured, for lack of causation evidence. Brown v. Husky Injection Molding Sys., Inc., — F.Supp.2d —, No. 08-11840-RGS, 2010 WL 4638761 (D. Mass. Nov. 17, 2010). This case is interesting for the Court’s analysis of a manufacturing defect claim regarding a product that was manufactured and installed in the 1970s.

Defendant, Husky Injection Molding Systems, Inc. (“Husky”) manufactured a 1525 series injection molding machine with serial number 3350 (“3350 machine”) which was sold to WNA Comet East, Inc. (“Comet”) in 1974. Plaintiff, Jimmy Brown (“Brown”), began working for Comet as an injection molding machine operator in 2003. In 2006, while trying to clean the 3350 machine, his left hand got caught in the belt and pulley, suffering “crush injuries.” It was undisputed that the 1525 series was designed with a front pulley guard, and if it had been in place, the accident would not have happened. It was also undisputed that in 2000, Comet had “rebuilt the 3350 machine, stripping it to its base, and replacing or refurbishing constituent parts as needed.”

Brown asserted a claim against Husky alleging that the 3350 machine was defectively manufactured because Husky failed to install the front pulley guard. In response, Husky asserted that Brown had no evidence that the 3350 did not have the pulley guard when it was delivered to Comet. Husky filed a motion for summary judgment. In support of Husky’s position, the technician that installed the 3350 machine in 1974 testified that it had the front pulley guard when installed. In rebuttal, Brown offered testimony of a Comet employee that testified that he had never seen a guard on the 3350 machine. However, this employee did not begin working with these machines until 1976, two years after installation.

The Court first distinguished a claim for a design defect and a manufacturing defect. To prove the first, a plaintiff must only prove that a defect in the design existed at the time the product left the manufacturer’s control. To prove the latter, a plaintiff must show that the defect was caused by a manufacturing error affecting only one particular product and that it was not caused by intermediaries. The Court concluded that while Brown had testimony that no guard was on the machine in 1976, he could not rebut Husky’s installer’s testimony that at installation, a guard was on the machine. Further, Brown did not have testimony regarding the presence or absence of guards before and after the 2000 refurbishment. Therefore, the Court found that Brown could not prove causation and granted Husky’s motion for summary judgment.

This case exemplifies the difficulties in proving a manufacturing defect case, especially when a product is in the hands of an intermediary for a long period of time. Essentially, in this type of case, a plaintiff must be armed with testimony accounting for a product’s condition and non-alteration the entire period of time from the date it left the manufacturer’s control until the injury. Sometimes this can be extremely hard. But without that testimony, a defendant will be able to raise, like here, the potentially fatal absence of evidence of causation.

Picture this: you represent a major automotive manufacturer in a products liability claim. On the eve of trial, your motion for summary judgment is granted, booting two of the plaintiffs from the case. Time to break out the bubbly, right? To borrow the phrase from my favorite football pundit, “Not so fast, my friend!” This is especially true if you are in North Carolina and you have an affirmative defense of modification under North Carolina General Statute 99B-3.

Last week, the North Carolina Court of Appeals analyzed the language of this statute which outlines the affirmative defense of modification or alteration of a product in Stark v. Ford Motor Co., No. COA09-286, 2010 WL 1959851 (N.C. Ct. App. May 18, 2010) [PDF]. In Stark, the case was originally filed in the name of all of the members of a family. The parents’ claims, along with the claims of one of the children, were dismissed pursuant to the defendant’s motion for summary judgment. Stark at *2. The only plaintiffs remaining in the case at the start of the trial were Cheyenne Stark (age 5 at the time of the accident) and her brother Cody Stark (age 9 at the time of the accident). Id. The minor plaintiffs were injured when their parents’ vehicle allegedly and unexpectedly accelerated while the mother was operating the vehicle in a parking lot. Id. The remaining plaintiffs’ theory was that their injuries were enhanced by an alleged design defect with the seat belts of the vehicle. Id.

The defendant asserted the affirmative defense of “Alteration or Modification of Product” available under N.C. Gen. Stat 99B-3. Specifically, the defendant argued that Cheyenne Stark had the shoulder belt behind her back at the time of the accident and thus the alleged design defect of “film spool” could not have been the cause of her injuries. Id. at *2. At the end of the trial, the jury returned a verdict finding the defendant “act[ed] unreasonably in designing the 1998 Ford Taurus and its component parts, proximately causing enhanced injury to Cheyenne Stark.” Id. at *3. However, the jury also found that Cheyenne’s enhanced injuries were caused by an alteration or modification of the vehicle. Id. Finally, the jury found that the defendant’s product did not cause the enhanced injury of the other minor plaintiff, Cody Stark. Id.

On appeal, the plaintiffs presented two arguments. First, since Cheyenne Stark was only 5 years old at the time of the accident, she was legally incapable of negligence and therefore unable to foresee that any modification or alteration could proximately cause her injury. Id. at *5. Second, the plaintiffs rebutted the defendant’s argument that Cheyenne’s parents modified the seat belt by putting the shoulder belt behind her back by relying on the statutory language that the modifier must be a party to the action. Id. at *6.

As to the plaintiff’s first argument, the court reasoned that the alteration or modification of a product must be the proximate cause of the injury in order for the defense to apply. As such, the court then engaged in a “foreseeability” analysis and pointed to longstanding North Carolina case law which held that children under the age of 7, as a matter of law, are incapable of negligence. Id. at *5. Thus, the court reasoned that under the appropriate standard of care for a child under the age of 7, the “…[d]efendant is unable, as a matter of law, to prove the requisite element of foreseeability inherent in the proximate cause portion of its N.C.G.S. 99B-3 defense.” Id. Since the defendant would be unable to establish proximate cause, the defense was unavailable as to any alleged modification or alteration performed by Cheyenne Stark herself.

With regard to the plaintiffs’ second argument, the court essentially applied the rules of statutory construction and held that “the plain language of N.C.G.S. 99B-3 states that he entity responsible for the modification or alteration of the product must be a party to the action in order for the defense to apply.” Id. at *7. The court recognized that the requirement that the modifier or alterer be a party to the case was an issue not previously determined by the courts in North Carolina. Therefore, the affirmative defense available under N.C. Gen. Stat. 99B-3 is only available if the one that modifies or alters the product is a party to the action. Which begs the question: was it really party time when the parents were kicked out the case shortly before the trial began? To be fair, hindsight is 20-20.